South Africa

Mogoeng Mogoeng, al-Bashir, and the rule of law in South Africa

By Stephen Grootes 18 June 2015

On Monday, South Africa saw what may just be a big, blaring signal that the government does not intend to comply with its own laws. It was this: three judges on a court bench, being led down the garden path regarding whether Sudanese leader/ dictator/ president/ man with the most guns, Omar al-Bashir, was still in the country. In the end, inevitably, he left – and it appears our government contravened a court order. On Wednesday, Chief Justice Mogoeng Mogoeng appeared in public. What do you think he was asked? By STEPHEN GROOTES.

For a man who is addressed as ‘Chief Justice’, there is a very real sense of humanity about Judge Mogoeng. Something old-worldly, confident, friendly and warm. The event at the Constitutional Court, where he made a public appearance, was ostensibly to celebrate 21 years of our Constitution and 800 years of the British Magna Carta. In reality, it’s probably part of a very clever British marketing campaign. But in the end, both Mogoeng and Deputy Chief Justice Dikgang Moseneke gave speeches. It could have ended there. But Mogoeng went the extra mile, and a media briefing was held.

You will be shocked, I’m sure, to discover that none of those questions were about the Magna Carta. Most of them were about Omar al-Bashir. The first question was from Yours Truly; simple, and blunt (albeit softened with an apology). The question was “What is your reaction?” to what most people think was government deliberately flouting the rule of law. Mogoeng leaned back slightly, and gave the answer he was always going to give; the only answer he could give: This case could come to the highest court, and “Naturally I would want to sit, when a case of such importance for this country and this continent, and maybe even the global village, comes before this court.”

One can hardly blame him.

Then, after the admission from Mr Truly that he had fully expected that answer, the real dance began. “Does it worry you that the rule of law is not being complied with in South Africa, in this case, and perhaps in other cases?” (Wiggle room: a version of the hypothetical question that gives those in difficult positions a way out.) Mogoeng went reasonably far. “[It is] my responsibility as Chief Justice of South Africa, but also, as First Vice President of the Conference of Constitutional Jurisdictions of Africa, to ensure that the rule of law is respected everywhere, be it in South Africa or on the continent.”

It’s hard to argue with a fact. But his response also appears to be a promise that he will enforce the law; he will do his duty. The reference to the continent is a nice touch. It may mean that when the African Union actually goes ahead and pulls out en masse from the International Criminal Court, the leaders of AU countries might face a little bit of a revolt from their own judges. You could hardly blame the judges. They’d certainly be behind anything that would strengthen their own institutions, no matter which country they’re in. And many of these judges may well feel that what happened on Monday is actually a signal that the power of judges across Africa is about to be weakened.

At that point, Mr Truly tapped out and another journalist tapped in. What, she wanted to know, was the Chief Justice’s experience of whether our government did comply with court orders? Mogoeng, it appeared, knew exactly how to answer that – with reference to Nelson Mandela. He pointed out how, in what is known as the ‘Pharmaceutical Case’, Madiba publicly said he would obey a court ruling even when it went against him, because the executive had to comply with the rulings of judges. Mogoeng went to on to say that in his experience, government did comply with court orders.

A little bit of history here is due, for reference. Mandela, of course, as a lawyer, knew exactly how important it was to obey the courts. Without that, there would simply be no point to having a Constitution in the first place. And getting that Constitution had been a long hard slog. At the time, there did not appear to be any better way to protect the rights of people as citizens, and this still holds true today.

Thabo Mbeki, to his eternal credit, did the same. Famously, even in the Nevirapine case, where he would have been furious to have lost, he complied, and pregnant women were given the drug, to protect their children from HIV. He did this even though he, through his own late-night research in the more interesting parts of the internet, believed them to be poison. (It’s interesting to note at this point that complying with court orders was clearly very important for Mbeki, but it’s not that important for his long-time spokesperson Mukoni Rashitanga, who has written a piece in his personal capacity, claiming that the al-Bashir case is about far more than just a court order, and thus government did the right thing.)

This brings us to our current government, and its leader, President Jacob Zuma.

So far, it’s probably a bit of a stretch to claim outright that he has not complied with a court order. Unfortunately, his own legal backstory, including rape charges, abuse of the National Prosecuting Authority, and the corruption charges that disappeared, colours public interpretation somewhat.

It is probably fair to say that Zuma could be accused of having less respect for the law than his predecessors. His continued use of various machinations to slow down legal proceedings, not to mention his odd comments about judges, generally, could lead analysts to conclude that his interpretation of the binding nature of the law doesn’t seem to be the same as it was for Mbeki and Madiba. And certainly, you could argue, the ANC itself has changed its position slightly on this issue as well. Incumbency can lead to arrogance, and contempt for anything that can be a check on your own power.

Through all of this, there is one point that simply has not been answered. If our government wanted to make its point about the world, and about the International Criminal Court, there was a legal way to do it: withdraw from the ICC. And it can’t really be argued that time was a factor. We have probably the best conference facilities on the continent, and the African Union will be back for another summit. Or, if the government really wanted to make a splash, they could have pulled out of the ICC, and then have al-Bashir arrive literally on the following day. That would have sent the same diplomatic message, but without the trauma of breaking its own court order.

Or did someone, somewhere, just not think of that? Or else just not care? DM

Photo: Chief Justice Mogoeng Mogoeng (Greg Nicolson)


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